Explaining the Almost Unexplainable: Preparing and Presenting Source Code Evidence at Trial

The presentation of source code-related evidence at trial can present a significant challenge. By its nature, it is obtuse and difficult for a fact finder to understand, but in many cases it can be the most potent evidence of how a product or service works.

In a first part to this two-part series, early considerations for source code discovery were discussed with a focus on preparation for trial presentation. Once source code evidence has been developed, the next challenge is presenting the evidence in court. This second part of the series addresses that challenge, including selecting the proper witness to testify, sealing the courtroom at trial, and the logistics of presentation in court.

Selecting the Proper Witness to Testify

Long before trial, a litigant should consider the witness who may present the source code evidence to the fact-finder. Depending on what party produced the code, candidates may be limited. The party that produced the source code may have a knowledgeable employee testify. On the other hand, for the receiving party, the witness will in most cases be an outside expert because of restrictions on who may see the source code.

The candidate should be a good communicator. Some basic source code background testimony may be needed for a lay jury. And many times the relevant functionality is part of a much larger set of source code, so the witness will need to be able to balance providing enough context without overwhelming the fact-finder. Employee-witnesses with little testifying experience may require more time to prepare for trial than an outside expert.

Credibility of the candidate is also paramount. The jury may be asked to believe the presenter without having an understanding of the underlying source code evidence. Employee-witnesses may be more persuasive than an outside expert based on their personal knowledge of the source code. The trade-off, however, is that the employee-witness may be perceived as biased, and thus less credible.

If an outside expert is selected to testify, a litigant must decide whether to have a dedicated source code expert or rely on their main liability expert. The sheer volume of source code evidence may require retention of a separate expert. The source code itself may also dictate the decision: specialized hardware design source code languages like HDL may be outside the expertise of the main liability expert. For presentation purposes, litigants may benefit from having a different and distinct voice at trial. If litigants opt for a separate source code expert, then special attention should be paid to integrating the testimony and conclusions of that expert into the opinions provided by the main liability expert.

Sealing the Courtroom at Trial

In many cases, companies' sensitivity to disclosure of their source code is at odds with the presumption of public access to court proceedings. Designating produced source code as protected under a stipulated protective order during discovery does not automatically result in sealing the courtroom at trial. See Kamakana v. City & Cty. of Honolulu (9th Cir. 2006). Instead, litigants must make a specific factual showing of harm from disclosure of the source code in an open courtroom. See Carnegie Mellon Univ. v. Marvell Tech. Group. Ltd., (W.D. Pa. Apr. 17, 2013). Litigants (or third parties) whose source code could be used at trial should be prepared to address sealing the courtroom either through motion practice or the proposed pre-trial order.

Litigants should also consider whether protective measures short of sealing the courtroom—such as using redacted versions of source code or presenting source code on monitors shielded from the gallery—may be acceptable alternatives. If redacted source code printouts are used, they should be agreed-to in advance and presented to the jury as redacted; redacting source code printouts after presentation to the jury may leave an impression that the previous disclosure was improper. If alternative monitors are used, courtroom layout and logistics need to be considered (as described below).

Presenting Source Code to the Jury

Ultimately, preparation for trial should consider the practicalities of presenting source code evidence. As with other types of evidence, counsel should consider whether demonstratives are helpful. The complexity of using the source code itself may require more trial time to appropriately present it to the jury.

Regardless of whether demonstratives or the actual source code is used, litigants should be aware of relevant protective order restrictions. For example, protective orders often prohibit the electronic reproduction of source code. Thus demonstratives with reproduced portions of source code may not be allowed. Instead, a party may need to project the source code on a screen using a document camera. If a document camera is used, counsel should make sure that the text on the printed source code pages is legible. Watermarks, colored paper, or low contrast copies may obscure or interfere with text on the page.

If demonstratives (like PowerPoint presentations) are concurrently presented with the printed source code pages, multiple independent monitor systems may be needed. Many courtroom presentation systems, however, do not include this capability. Counsel and vendors may need to coordinate to make extra video system available. Obviously, if additional monitors (or demonstrative boards) are contemplated, counsel should map out their placement in the courtroom, taking in to account sight lines and distance, to allow viewing by the judge, jury, witness, and opposing counsel during the witness's presentation.

Conclusion

At every stage of litigation a litigant has the opportunity to prepare for and shape the use of source code evidence at trial. The use of source code evidence at trial can be a smooth and effective part of a litigant's trial presentation, but proper planning and strategic thinking is critical to achieve this goal.

David Prange is a partner at Robins Kaplan LLP and leads the trade secrets subpractice. His practice focuses in complex business litigation with an emphasis on intellectual property, including patents, trade secrets, trademarks, and licensing disputes in federal and state courts across the United States. He has litigated and tried multiple cases to successful verdicts involving source code evidence. [email protected]

Benjamen Linden is an associate at Robins Kaplan LLP. His practice is focused on high-tech litigation, including patent infringement, trade secret, licensing, and outsourcing disputes. He has experience presenting and managing the development of source code evidence through all stages of litigation up to and through trial. [email protected]